Before
the Court is a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 [Record Documents
456 & 457], filed by Defendant Albert Little
(“Little”). The United States responded to the
motion [Record Document 471], and Little filed a reply
[Record Document 474] and a request for an evidentiary
hearing [Record Document 468].[1]For the following reasons, the
section 2255 motion [Record Document 456] and the request for
an evidentiary hearing [Record Document 468] shall be
DENIED.[2]

BACKGROUND

Little
is the former Sheriff of Winn Parish, Louisiana. On July 29,
2011, a fourteen count indictment was returned by a federal
grand jury against Little and his co-defendants. Little was
charged in Count One with conspiracy to posses with intent to
distribute fifty grams or more of methamphetamine, in
violation of Title 21, United States Code, Sections 841(a)(1)
and 846. Count Five charged him with possession with intent
to distribute five grams or more of methamphetamine, in
violation of Title 21, United States Code, Section 841(a)(1)
and Title 18, United States Code, Section 2. Finally, Counts
Seven and Eleven charged Little with the use of a
communication facility in facilitating the commission of a
drug offense, in violation of Title 21, United States Code,
Section 843(b).

Prior
to trial, all of Little's co-defendants entered pleas of
guilty. Little proceeded to trial alone. A four day jury
trial commenced on February 21, 2012. At the close of
evidence on the third day of trial, Little made a Rule 29
motion for judgment of acquittal. The Court reserved its
ruling until a jury verdict was reached. On the fourth day,
after the jury convicted Little of all four counts against
him, the Court denied Little's Rule 29 motion. After
trial, Little filed a motion for judgment of acquittal, which
this Court also denied with written reasons. See Record
Document 360. On August 29, 2012, this Court sentenced Little
to 160 months' imprisonment with five years of supervised
release to follow. See Record Document 394. On August 6,
2013, the Fifth Circuit Court of Appeals affirmed
Little's conviction and sentence. See Record Document
445. He then timely filed the instant section 2255 motion.

In his
motion, Little contends that his trial counsel was
constitutionally ineffective and asks this court to vacate
his conviction. First, Little argues that counsel was
ineffective in failing to ensure Little's presence for
all portions of voir dire. Second, Little argues that counsel
was ineffective because a lackadaisical attitude was
exhibited during jury selection.

Third,
Little argues that the Court improperly removed a juror for
“dubious reasons.” Record Document 457-1, p. 8.
Fourth, Little argues that counsel was ineffective for
denying Little the right to testify on his own behalf. Fifth,
Little argues that counsel was ineffective for failing to
present a plea-related counter-offer to the Government in
which Little offered to plead to official oppression or
misprision of a felony. Sixth, Little argues that counsel was
ineffective for failing to allow him to review the
presentence report prior to sentencing. Seventh, Little
argues counsel was ineffective for failing to raise any of
the aforesaid errors on direct appeal. And finally, Little
cites the cumulative error doctrine, arguing that
cumulatively, all of these errors require his conviction to
be vacated.

It is
worth noting that at trial, Little was represented by two
attorneys. Upon his initial indictment, Little was
represented by retained criminal attorney Taylor Townsend
(“Mr. Townsend”). Mr. Townsend represented Little
throughout pretrial and trial proceedings. Shortly after
indictment and after Little's bond was revoked for
conduct unrelated to the instant motion, Ansel Martin Stroud,
III (“Mr. Stroud”) enrolled as Little's
second retained counsel and likewise remained enrolled
throughout pretrial, trial, and post-trial proceedings.

LAW&
ANALYSIS

Under
28 U.S.C. § 2255, a prisoner may move to vacate, set
aside, or correct a sentence imposed by a federal court when:
(1) the sentence “was imposed in violation of the
Constitution or laws of the United States[;]” (2)
“the court was without jurisdiction to impose such
sentence[;]” (3) “the sentence was in excess of
the maximum authorized by law[;]” or (4) the sentence
“is otherwise subject to collateral attack.”
United States v. Scruggs, 691 F.3d 660, 666 (5th
Cir. 2012); 28 U.S.C. § 2255(a). “As the Supreme
Court holds, ‘[h]abeas review is an extraordinary
remedy and will not be allowed to do service for an
appeal.'” United States v. Cooper, 548
Fed.Appx. 114, 115 (5th Cir. 2013) (quoting Bousley v.
United States, 523 U.S. 614, 622 (1998)) (internal
quotations and citations omitted). Rather, after a defendant
is convicted and exhausts the right to appeal, a court is
“entitled to presume that the defendant stands fairly
and finally convicted.” United States v.
Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (quoting
United States v. Frady,456 U.S. 152, 164 (1982)
(internal marks omitted)).

“Relief
under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.”
United States v. Young, 77 Fed.Appx. 708, 709 (5th
Cir. 2003) (citing United States v. Vaughn, 955 F.2d
367, 368 (5th Cir. 1992)). Courts may consider claims for
ineffective assistance of counsel brought for the first time
in a § 2255 motion. See United States v.
Gaudet,81 F.3d 585, 589 (5th Cir. 1996). To
successfully state a claim of ineffective assistance of
counsel, the petitioner must demonstrate that counsel's
performance was deficient and that the deficient performance
prejudiced his defense. See Strickland v.
Washington,466 U.S. 668, 687 (1984). Failure to
establish either prong of the Strickland test will result in
a finding that counsel's performance was constitutionally
effective. Id.; see also Tucker v. Johnson,115 F.3d 276, 280 (5th Cir. 1997). The petitioner bears the
burden of proof on both components of the Strickland
standard. See Strickland, 466 U.S. at 687.

As to
the first prong, in determining whether counsel's
performance was deficient, courts “indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. “[T]he defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial
strategy.” Id. (internal marks omitted). If a
tactical decision is “conscious and informed . . . [,
it] cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it
permeates the entire trial with obvious unfairness.”
Crane v. Johnson,178 F.3d 309, 314 (5th Cir. 1999).
“Judicial scrutiny of counsel's performance must be
highly deferential, ” and the court must make every
effort “to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
alleged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Strickland, 466
U.S. at 689. Thus, this Court's review “strongly
presum[es] that counsel has exercised reasonable professional
judgment.” United States v. Payne, 99 F.3d
1273, 1282 (5th Cir. 1996) (quoting Lockhart v.
McCotter, 782 F.2d 1275, 1279 (5th Cir. 1986)).

To
establish the second prong of prejudice, the petitioner must
show that “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.”[3] Strickland, 466
U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. A defendant is not prejudiced if “the
ineffectiveness of counsel does not deprive the defendant of
any substantive or procedural right to which the law entitles
him.” Lockhart v. Fretwell,506 U.S. 364, 372
(1993). Self-serving conclusory statements that the outcome
would have been different “fall[ ] far short of
satisfying Strickland's prejudice element.”
Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir.
2001). Moreover, “[m]ere conclusory allegations in
support of a claim of ineffective assistance of counsel are
insufficient to raise a constitutional issue.”
Green v. Johnson,160 F.3d 1029, 1042 (5th Cir.
1998). The prejudice element requires more than a mere
allegation; the defendant must affirmatively prove it.
United States v. Thompson,44 F.3d 1004, *2 (5th
Cir. 1995). Because both prongs of Strickland must be
satisfied, a court may reject an ineffective assistance of
counsel claim upon an insufficient showing of either
deficient performance or prejudice, without inquiry into the
remaining prong. See Strickland, 466 U.S. at 689-94.

1.
Individualized Voir Dire.

Little's
first challenge attacks defense counsels' failure to
ensure his presence at individualized voir dire in the robing
room. A criminal defendant has a right, protected by both the
Constitution and the Federal Rules of Criminal Procedure, to
be present at trial. United States v. Gagnon, 470
U.S. 522, 526-27 (1985). Federal Rule of Criminal Procedure
43 codifies the Fifth and Sixth Amendment rights to be
present at trial, including jury impanelment. See Fed. R.
Crim. P. 43(a)(2). “One purpose of the right to
presence is to protect the defendant's exercise of his
peremptory challenges, which means the defendant should be
allowed to obtain as much first hand information as feasible
to facilitate his ability to participate in the selection of
a jury.” United States v. Curtis, 635 F.3d
704, 715 (5th Cir. 2011) (internal marks omitted). Two
requirements stem from the defendant's right to be
present. “First, the defendant must be present for the
substantial majority of the jury-selection process. Second,
the defendant must be present in the courtroom at the moment
when the court gives the exercise of peremptory challenges
formal effect by reading into the record the list of jurors
who were not struck. Where these requirements are satisfied,
a defendant's right to presence is not violated by a
short absence during one portion of jury selection.”
Id.

During
Little's trial, the Court conducted the majority of voir
dire in the courtroom. When jurors indicated a need for
privacy in order to answer a question, or if they indicated
strong feelings in response to a question asked of them in
open court, the Court and the attorneys adjourned to the
robing room to question those particular jurors individually.
The private questioning of the jury venire lasted from
approximately 3:30 p.m. until 8:00 p.m. Record Document 598
p. 83-84, 277. The jurors were only questioned about the
specific issue that precipitated the private conference in
the first place. That is, if a juror expressed prior
knowledge about the case, the juror was asked about that in
private; if a juror expressed strong opinions about law
enforcement, the juror was questioned about those feelings in
private; if a juror had preconceived notions about public
officials, the Court asked about those feelings in private.
In other words, every juror who was questioned in the robing
room had been questioned in open court. The individualized
voir dire in the robing room was conducted in this manner in
order to avoid possibly tainting others in the jury pool. The
individualized voir dire often, but not always, resulted in a
challenge for cause. No. one objected to the individualized
voir dire procedure, nor does Little object to the use of
this procedure in the instant motion. Rather, Little's
objection is that while he was present for all of voir dire
that occurred in the courtroom, he asserts he was not present
for the individualized voir dire in the robing room.

Surprisingly,
the Government fails to acknowledge Little's
constitutional right to be present during jury selection. It
neither analyzes the force of his claim under the law, nor
does it examine his challenge under the Strickland
standard. Further, the affidavits of Mr. Townsend and Mr.
Stroud, submitted by the Government in support of its
opposition to Little's section 2255 motion, likewise fail
to address Little's claim that they waived his presence
during individualized voir dire.

The
Court's own review of the record reveals that Little was
present for the majority of jury selection. He was in court
when voir dire began, Record Document 598, p. 2, and he
remained present throughout the proceedings in the courtroom.
He does not contend otherwise. He was given the opportunity
to consult with his defense team before the peremptory
challenges were submitted to the Court, [4] and he does not
contend otherwise. He was present in the courtroom when the
peremptory challenges were given formal effect by way of the
jury impanelment. He does not contend otherwise.

Hence,
the case before the Court is not one in which the defendant
was absent from the whole of voir dire or from jury
impanelment. Rather, Little's claim is that he was
excluded from a portion of voir dire, over his objection to
his attorneys. The record does not support his claim. First,
the Court's normal practice is to allow a defendant to
participate in the individual voir dire in the robing room.
The only instance in this case where the record establishes
Little's absence was in derogation of the Court's
usual practice and was specifically noted for the record.
Record Document 598. On that occasion, during voir dire, the
Government requested a sidebar. The Court and the parties
retired to the robing room where the following exchange
occurred:

Mr. Stroud: I want you to know, for the record, our client is
not present.

The Court: Do you want him present?

Mr. Stroud: I think I know what Joe [Jarzabek] is going to
ask. So faced with that, I just waive it. We can put it on
the record later; we're not making any decisions right
now.

Id. at p. 70. AUSA Jarzabek proceeded to inform the
Court that instead of asking probing questions in open court,
he preferred to make a list to identify members of the jury
pool who required private questioning. Id. at 70-71.
The Court and the attorneys then returned to open court.
Id. at 71. Mr. Stroud's remark, noting
Little's absence, stands in isolation on the record, as
it is the only time there was ever any indication
that Little was not present during a conference regarding
jury selection.

Further
bolstering the Court's impression that Little was present
for individual voir dire is the phrasing defense counsel used
when questioning a potential juror. Mr. Townsend stated,
“I can only imagine my client's sitting here
thinking that he's sorry you're having to go through
this . . . .” Id. at 211. This supports the
inference that Little was, indeed, present in the robing
room. Thus, the record does not support Little's claim
that he was excluded from individual voir dire in the robing
room.

However,
assuming arguendo that Little could establish that his
attorneys caused a violation of his right to be present at
voir dire, Little's ineffective assistance of counsel
claim nevertheless fails under the second prong of
Strickland, which requires a showing of prejudice.
Little must establish that “the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id.

To meet
this burden, Little argues that “not being present
during the questioning of the jurors prejudiced him by not
affording him a fair and impartial jury of his peers. Perhaps
Little had arrested or issued citation to some of the members
of the pool but with him not being present, there would be no
way of knowing.” Record Document 457, p. 3. However, it
has already been conclusively established that Little was, in
fact, present for all of the voir dire conducted in the
courtroom. As stated above, every juror in the venire was
questioned in open court in front of Little, even if they
were later questioned in the robing room. Thus, Little
personally saw the jury venire, listened to their answers,
and observed their demeanor during questioning. His
insinuation that he was deprived of a chance to expose
someone lurking on the jury venire is frivolous, as Little
could have alerted his counsel to any particular juror about
whom he was concerned- after having personally observed each
juror in the courtroom-- so that those issues could be
explored.

Furthermore,
simply stating that Little was prejudiced by not receiving a
fair and impartial jury is a wholly conclusory allegation
with no basis in fact. Conclusory allegations are
insufficient to carry Little's burden. There is no
evidence in the record, nor even an implication, that the
jury was not fair and impartial. Moreover, Little does not
elaborate on how his presence or active participation in the
robing room would have resulted in a different jury and hence
a different verdict. The Court concludes that Little has
failed to demonstrate any prejudice he suffered as a result
of his attorneys' alleged failure to ensure his presence
in the robing room.

2.
Remarks by Mr. Townsend during Voir Dire.

Little
submits that Mr. Townsend rendered ineffective assistance of
counsel by expressing remarks during voir dire which
demonstrated a lackadaisical attitude about the significance
of Little's trial. Little argues that he was
“prejudiced by the improper or lack of questioning by
his defense attorney to eliminate bias.” Record
Document 457, p. 5. This claim is plainly contradicted by the
record. Voir dire began shortly after the lunch hour, Record
Document 598, p. 2, and continued until after 8:00 p.m,
id. p. 277. Mr. Townsend engaged in hours of voir
dire, questioning members of the jury venire, exposing strong
opinions and biases of some, while rehabilitating others. The
record is replete with examples of his efforts to secure a
fair and impartial jury for his client. That Mr. Townsend
made a few stray remarks about the lateness of the hour, or
the length of the voir dire process, does not constitute
deficient performance. Little fails to demonstrate both that
Mr. Townsend performed deficiently and the prejudice Little
suffered as a result. This claim is without merit.

3.
Removal of a Juror.

Little
next challenges the Court's removal of a juror, arguing
that “the court improperly removed [the juror] for
dubious reasons, thereby denying Little a fair and impartial
jury of his peers . . . .” Record Document 457, p. 8.
This is not an ineffective assistance of counsel claim.
Indeed, in his Reply, Little clarifies: “The defendant
does not argue that the attorneys were deficient for failing
to object to the excusal by the Court of a juror . . . . The
Petitioner's claim in this regard is against the Court,
not his trial counsel.” Record Document 474, p. 4.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Habeas
review is not a substitute for an appeal. Claims not raised
on direct appeal may not be raised for the first time in a
section 2255 motion unless the petitioner establishes both
cause and prejudice. Massaro v. United States, 538
U.S. 500, 504 (2003). Little had the opportunity to raise
this issue on direct appeal to the Fifth Circuit and failed
to do so. He has not even attempted to ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.